The Difference Two Justices Make: FEC V. Wisconsin Right to Life, Inc. II and the Destabilization of Campaign Finance Regulation

In the Bipartisan Campaign Reform Act (BCRA) of 2002, Congress banned corporations and unions from directly funding
broadcast, satellite, or cable communications identifying federal
candidates and targeting their electorates shortly before an
election. In McConnell v. Federal Election Commission, the
Supreme Court upheld this ban against facial constitutional
attack without discussing the availability of as-applied
challenges. Last term, in Federal Election Commission v.
Wisconsin Right to Life, Inc. (WRTL II), the Court held one such
challenge successful. The Court split three ways: Justices Stevens, Souter, Ginsburg, and Breyer would have upheld the
ban against both as-applied and facial attack. Justices Scalia,
Kennedy, and Thomas, on the other hand, would have overruled McConnell, decided only three years earlier, and found the ban unconstitutional on its face. The Court’s two new Justices, Chief Justice Roberts and Justice Alito, controlled the outcome. Although they did not overrule McConnell and hold the ban unconstitutional on its face, they found it unconstitutional under an as-applied standard that robs the ban of any content. This essay analyzes this controlling opinion and discusses both its direct and certain effects on electioneering communications and its more indirect and uncertain effects on other aspects of campaign finance regulation. Although it tries hard to appear not to do so, the controlling opinion clearly breaks with the past and threatens to destabilize large areas of campaign finance law.

Campaign Finance Reform Before 1971

The story is told that Samuel Gompers, the president of the
American Federation of Labor (AFL), once approached his friend, Senator Boies Penrose, the Republican boss of Pennsylvania, seeking support for legislation then pending in Congress to abolish child labor. Penrose supposedly replied “But Sam, you know as damn well as I do that I can’t stand for a bill like that. Why those fellows this bill is aimed at—those mill owners—are good for two hundred thousand dollars a year to the party. You can’t afford to monkey with business that friendly.”
“Money is the mother’s milk of politics,” and this is as true in the twenty-first century as it was in the nineteenth. Whether a presidential candidate trying to get his message to two-hundred and eighty million people spread out over six million square miles, or a soccer parent running for town supervisor in a metropolitan suburb, a candidate needs money to pay for billboards, posters, mailings, television and radio time, as well as the full-time workers who staff the campaigns. To ignore this truth is to avoid the central issue in campaign finance reform—money is the fuel of political campaigns.